Wednesday, March 10, 2010

McCain/Liberman Aim to Repeal Constitution

A friend with a Harvard law degree and a Columbia Ph.D. in the dismal science forwarded me this XPostFactoid link. With all of the horrific things going on with Democratic Party's destruction of health care and freedom, it is easy to overlook other issues. According to XPostFactoid McCain and Lieberman have put forward a bill called "The Enemy Belligerent Interrogation, Detention and Prosecution Act of 2010", which would effectively repeal a wide range of constitutional rights, to include habeas corpus and the presumption of innocence. Based on my brief review the bill does not exclude American citizens from its definition of "belligerent". Hence, any American citizen could be defined as a belligerent unless I am missing something. According to XPostFacto:

>The bill authorizes the President to establish an 'interagency team' to make a 'preliminary determination of the status' of an individual 'suspected of engaging in hostilities against the United States or its coalition partners through an act of terrorism, or by other means in violation of the laws of war, or of purposely and materially supporting such hostilities.' That team will determine whether the suspect shall be accorded a preliminary designation as a 'high value detainee' (a.k.a. 'unprivileged enemy belligerent' -- the bill makes no coherent distinction between these terms). A final status determination is to be made by the Attorney General and Secretary of Defense; the President can only weigh in if these two disagree. Incredibly, the entire procedure from capture to final status determination is to be completed within 48 hours.

"The provision that removes all discretionary limits to this secret determination of status is in the Criteria for Designation of Individuals as High-Value Detainees. That section creates an initial impression that such "determinations" are subject to the rule of law by laying out specific criteria...But the final criterion (E) zooms to infinity: it is simply "Such other matters as the President considers appropriate...

"Thus any individual, whether a foreign national or a U.S. citizen, can be designated an 'unprivileged enemy belligerent,' forever denied access to civilian courts and subjected to indefinite detention 'without criminal charge and without trial for the duration of hostilities against the United States or its coalition partners' -- that is, forever -- on the basis of such other matters as the President considers appropriate..."

The definition of "unprivileged enemy belligerent" in the bill is as follows:

>UNPRIVILEGED ENEMY BELLIGERENT.—The term ‘‘unprivileged enemy belligerent’’ means an individual (other than a privileged belligerent) who (A) has engaged in hostilities against the United States or its coalition partners; (B) has purposely and materially supported hostilities against the United States or its coalition partners; or C) was a part of al Qaeda at the time of capture.

Although the bill appears to refer to legitimate terrorists, it could be applied, at the president's discretion, to any US citizen, for instance, anyone who opposes health reform. For example, President Obama could say that anyone opposing health reform is materially supporting hostilities against the United States.

To avoid such a problem, the bill must be limited to non-citizens and illegal resident combatants. Any citizen or legal resident must be given due process. This would limit the authority of the president to military issues, which is appropriate.

It irritates me that I have in the past contributed to both McCain and Lieberman and they now propose a bill that permits the president to rescind citizens' basic legal rights. That is the approach used in China and Cuba. The threat of terrorism, while an important security concern, does not justify repeal of citizens' constitutional rights. At the same time, the president must have the authority to combat foreign terrorists or invaders. This can be accomplished by limiting the president's authority to combat foreign terrorists or invaders to foreigners and illegal residents.

Otherwise, XPostFacto's concerns are legitimate. The bill would open Pandora's box that much wider.

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Mitchell Langbert

About Me

I have researched and written about employee benefit issues and in my previous life was a corporate benefits administrator. I am currently associate professor of business at Brooklyn College. I hold a Ph.D. from the Columbia University Graduate School of Business, an MBA from UCLA and an AB from Sarah Lawrence College. I am working on a project involving public policy. I blog on academic and political topics.